Casting a Wide Net

Submitted by Scott Jaschik on December 18, 2006 - 4:00am

The Bush administration has not always been friendly to affirmative action in higher education -- coming out against the University of Michigan's affirmative action admissions plans, for example, when they were reviewed by the Supreme Court in 2003.

But with one of the leading groups opposing affirmative action in higher education attacking the way colleges try to diversify their applicant pools for faculty and administrative positions, one of the administration's key civil rights agencies is backing colleges and angering their conservative critics. At issue is the practice of colleges stating in job notices that they particularly welcome applications from female or minority scholars (and in some case in fields traditionally dominated by women, that male applicants are welcome).

Some critics of affirmative action are gearing up to challenge such notices. But in an interview Friday, a senior official at the U.S. Equal Employment Opportunity Commission said that such notices were legal and that the agency had no plans to challenge them.

The Center for Equal Opportunity -- which has taken an aggressive stance in fighting affirmative action in higher education -- has been pushing the EEOC to bar such job notices, and is planning to seek support from the U.S. Justice Department on the issue. This particular affirmative action battle has been waged largely behind the scenes but emerged last week because of a dispute involving the American Economic Association.[1] The association has had a policy of barring such notices in its job listings, but is reconsidering that policy after being criticized for rejecting postings with such language.

In Phi Beta Cons,[2] a conservative blog on higher education, Roger Clegg published a portion of a letter he had sent to the EEOC calling for it to tell colleges to stop using jobs notices that say that they welcome members of particular groups to apply. He argued that such job notices violate Title VII of the Civil Rights Act of 1964, which bars discrimination in hiring, including practices in job advertising that are discriminatory. Clegg -- president of the Center for Equal Opportunity -- said such notices are not only illegal, but wrong.

"Suppose, for instance, the shoe were on the other foot, and an ad specified that 'White males are encouraged to apply,' let alone 'especially' encouraged to apply? We think that the commission would, quite rightly, take a dim view of this," Clegg wrote.

In his blog post, Clegg noted that he would be testifying before the commission on these issues early next year. But Clegg didn't mention that the EEOC had answered his letter -- pretty much rejecting his arguments.

Peggy R. Mastroianni, associate legal counsel of the EEOC, wrote to Clegg[3] that in cases where applicant pools do not match "the relevant qualified labor force," it is not only legal, but frequently encouraged by the EEOC, for employers to "adopt proactive measures" to diversify pools.

"Because members of groups that have been historically underrepresented in a particular profession may be deterred from applying unless they are encouraged to do so, such advertisements help employers attain greater diversity among their applicants," she wrote. "Such diversification is not equivalent to preferential hiring. If whites or men are underrepresented in some positions, it might be appropriate to 'encourage' applications from them. For example, in some cases it may be appropriate to encourage men to apply for some positions in nursing."

In an interview Friday, Clegg said that his group -- which has in the past played a key role in organizing opposition to various forms of affirmative action -- intended to push both EEOC and the Justice Department to change this position. He said he believed that while EEOC staff lawyers may have considered the issue, he did not think the members of the commission itself had spent sufficient time on it. And he said he was confident that if they did, they would see a problem.

He added that it was "implausible" that colleges would especially want to welcome some applicants, and not give them unfair preference in actual hiring decisions. And he also said that colleges that use this technique -- of welcoming specific groups -- were doing so regardless of whether departments had significant problems with attracting a diverse applicant pool.

But in an interview, also on Friday, Mastroianni rejected those arguments. She said that if some departments are using the "welcome" statements in job postings and getting a diverse pool, there might be a relationship so it would not follow that the statements are no longer needed.

Of the practices of college in this area, she said: "We've been aware of this for a long time and don't view it with alarm."

Saranna Thornton, a professor of economics at Hampden-Sydney College, said that the practice is also a crucial one and that colleges should be prepared to defend it.

"People thinking of applying for jobs will go to a college Web site for a department and if they see that the department is fairly homogeneous, then they will look at the equal opportunity statement, and if it's just an equal opportunity statement, they may think that's wink wink, nod nod" and the department isn't really committed to diversity, Thornton said.

In contrast, if these potential candidates see a statement that explicitly invites applications from members of groups not well represented in the department, that's a concrete invitation that could prompt the would-be candidates to actually apply, she said.

Critics of affirmative action, she said, are trying to confuse "inclusive" affirmative action (which is legal) with "exclusive" affirmative action, which in some cases has been successfully challenged. If a college said it only would accept applications from female or minority candidates, or only recruited at meetings of female academics, that would be the sort of "exclusive" affirmative action that courts have questioned.

But Thornton, who is chair of the American Association of University Professors Committee on the Economic Status of the Profession, said steps taken by colleges and other employers to expand pools are "always legal," adding that "widening the funnel is always legal."

She stressed that -- in some situations -- men could end up benefiting. "I think that, morally and ethically, this is the right thing to do," she said. "There are still a lot of stumbling blocks -- intentional and unintentional in the road for women and minorities in academia, and I think that's true whether you are talking about women in economics and men in nursing."